Opinion

HMW Special Utility District of Harris and Montgomery Counties v. Public Utility Commission of Texas

Court
Texas Court of Appeals, 3rd District (Austin)
Filed
Feb 24, 2023
Status
Published
Cited by
0 cases
Authority
More cited than 22.7%

stating opinion that “matured appropriation right to water is a vested right”

How later courts described this case

  • stating opinion that “matured appropriation right to water is a vested right”
  • “The reviewing court is concerned only with the reasonableness of the administrative order, not its correctness.”

Written by the judges who cited it.

The opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-21-00234-CV

HMW Special Utility District of Harris and Montgomery Counties, Appellant

v.

Public Utility Commission of Texas, Appellee

FROM THE 200TH DISTRICT COURT OF TRAVIS COUNTY

NO. D-1-GN-20-000905, THE HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

MEMORANDUM OPINION

Pursuant to former section 13.254(a-5) of the Texas Water Code, the Public

Utility Commission of Texas granted the petition of Previllage, L.L.C. for expedited release of

its property from the certificated service area of HMW Special Utility District of Harris and

Montgomery Counties. See former Tex. Water Code § 13.254(a-5) (providing property not

receiving water or sewer service expedited release from certificate of public convenience and

necessity). 1 HMW filed suit for judicial review, and the trial court affirmed the Commission’s

order. See Tex. Water Code § 13.381 (entitling party to proceeding before Commission to

judicial review under substantial evidence rule). For the following reasons, we affirm the trial

court’s final judgment.

1 Effective September 1, 2019, the substance of section 13.254(a-5) was modified and

moved to section 13.2541 of the Texas Water Code. See Act of May 25, 2019, 86th Leg., R.S.,

ch. 688, §§ 4, 6, 2019 Tex. Gen. Laws 1977, 1977–78 (current version at Tex. Water Code

§ 13.2541). We refer to former section 13.254 as it existed prior to September 1, 2019.

BACKGROUND

HMW holds a certificate of public convenience and necessity, CCN number

10342, that authorizes it to be the exclusive water-service provider within a specifically defined

territory, which is referred to as the “certificated area.” See id. § 13.244 (setting forth

requirements for CCN). Previllage owns an approximately 50-acre tract of land (the Property)

that is located within HMW’s certificated area.

In March 2019, Quadvest, L.P., a water utility and CCN holder, filed a petition on

behalf of Previllage for the expedited release of the Property from HMW’s certificated area

because the Property was not “receiving water service.” See former Tex. Water Code

§ 13.254(a-5). The petition was through the affidavit of Ahmet Ozan, the general partner of

Previllage. Ozan averred that the Property was over 25 acres and “not receiving water service

from [HMW] or any other water service provider.” See id. (providing that owner of tract of land

larger than 25 acres and located in certain counties may petition for, and is entitled to, expedited

release of tract from certificated area if the tract “is not receiving water or sewer service”); see

also id. § 13.002(21) (defining “service”). 2

In April 2019, an administrative law judge (ALJ) found that Previllage’s petition

was deficient because it listed the Property as being in Montgomery County when “the attached

maps list the [P]roperty within Harris County.” The ALJ provided an opportunity to cure, and

2 The Commission “shall grant a petition received under Subsection (a-5) not later than

the 60th day after the landowner files the petition.” Former Tex. Water Code § 13.254(a-6).

“Upon decertification of the property, the CCN holder no longer has the exclusive right to

provide service to the property.” Johnson Cnty. Specialty Util. Dist. v. Public Util. Comm’n of

Tex., No. 03-17-00160-CV, 2018 Tex. App. LEXIS 3328, at *2 (Tex. App.—Austin May 11,

2018, pet. denied) (mem. op.).

2

Quadvest, on behalf of Previllage, filed an amended petition with a revised affidavit of Ozan

correctly identifying Harris County as the county in which the Property was located.

In the time between the filing of the original and amended petitions, HMW

intervened in the administrative proceeding. HMW moved to dismiss the petition and sought

discovery from Quadvest. HMW did not contend that the Property was receiving water service

but sought to have the petition dismissed because, as is relevant here, Ozan’s initial and revised

affidavits were contradictory as to the county in which the Property was located. The ALJ

denied HMW’s request for discovery and motion to dismiss and recommended that the petition

be granted and that HMW not receive compensation. See former Tex. Water Code § 13.254(a-6)

(“The utility commission may require an award of compensation by the petitioner to a decertified

retail public utility that is the subject of a petition filed under subsection (a-5) as otherwise

provided by this section.”), (d) (addressing compensation for property that Commission

“determines is rendered useless or valueless to the decertified retail public utility as a result of

decertification”). Consistent with the ALJ’s recommendations, the Commission granted the

petition, releasing the Property from HMW’s certificated area. In its order, the Commission

found:

The tract of land from which Previllage seeks release is at least a total of 25

contiguous acres, is not receiving water service, and is within the boundaries of

Harris County, a qualifying county.

***

HMW has not committed or dedicated facilities or lines providing water service to

the tract of land.

HMW has not performed acts regarding or supplied anything to the tract of land.

3

The tract of land is not receiving water service from HMW.

In its conclusions of law, the Commission concluded that Previllage had satisfied the

requirements of former section 13.254(a-5) and that the Property was subject to expedited

release. The Commission also concluded that HMW was not entitled to compensation because it

had failed to prove that any of its property would be rendered valueless or useless by the

decertification of the Property under the standards of former section 13.254(a-6) and (d).

HMW filed a motion for rehearing, which was overruled by operation of law, and

sought judicial review of the Commission’s order. Before the trial court, HMW also sought

temporary injunctive relief and discovery directed to Quadvest. 3 The trial court denied HMW’s

requests for injunctive relief and discovery and signed a final judgment affirming the

Commission’s order. This appeal followed.

ANALYSIS

In seven issues, HMW contends that: (i) the Commission did not have

jurisdiction or authority to consider the application to decertify, (ii) the application to decertify

under former section 13.254(a-5) cannot be applied to HMW, (iii) the Commission’s rulings

interfered with HMW’s substantial rights as provided by section 2001.174 of the Texas

Government Code, (iv) the Commission was required to consider section 13.252 of the Texas

Water Code, (v) the Commission and the trial court should have granted the discovery requested

by HMW, (vi) the application to decertify was not verified as required by former section

13.254(a-5), and (vii) the trial court erred by failing to reverse the Commission.

3 In addition to naming the Commission as a defendant in its suit for judicial review,

HMW named Quadvest and Previllage. Quadvest and Previllage answered and participated in

the trial court, but they are not parties on appeal. See Tex. Water Code § 13.381 (entitling party

to proceeding before Commission to judicial review under substantial evidence rule).

4

Standard of Review

Judicial review of the Commission’s final order is by the substantial evidence

standard of review. See Tex. Water Code §§ 13.002(16) (defining “proceeding” to include “fact-

finding or decision-making procedure” under chapter 13 of Texas Water Code), .381 (providing

that party to “proceeding” before Commission “is entitled to judicial review under the substantial

evidence rule”); Texas Gen. Land Office v. Crystal Clear Water Supply Corp., 449 S.W.3d 130,

135 (Tex. App.—Austin 2014, pet. denied) (describing standard of review from Commission’s

order granting expedited release under former section 13.254(a-5) of Water Code).

Under this standard, “a court may not substitute its judgment for the judgment of

the state agency on the weight of the evidence or questions committed to agency discretion.”

Tex. Gov’t Code § 2001.174; see Firemen’s & Policemen’s Civil Serv. Comm’n v. Brinkmeyer,

662 S.W.2d 953, 956 (Tex. 1984) (“The reviewing court is concerned only with the

reasonableness of the administrative order, not its correctness.”). But we must reverse or remand

the case to the state agency for further proceedings:

if substantial rights of the appellant have been prejudiced because the

administrative findings, inferences, conclusions, or decisions are:

(A) in violation of a constitutional or statutory provision;

(B) in excess of the agency’s statutory authority;

(C) made through unlawful procedure;

(D) affected by other error of law;

(E) not reasonably supported by substantial evidence considering the reliable and

probative evidence in the record as a whole; or

5

(F) arbitrary or capricious or characterized by abuse of discretion or clearly

unwarranted exercise of discretion.

Tex. Gov’t Code § 2001.174(2).

“Substantial-evidence analysis entails two component inquiries: (1) whether the

agency made findings of underlying facts that logically support the ultimate facts and legal

conclusions establishing the legal authority for the agency’s decision or action and, in turn,

(2) whether the findings of underlying fact are reasonably supported by evidence.” AEP Tex.

Commercial & Indus. Retail, Ltd. P’ship v. Public Util. Comm’n of Tex., 436 S.W.3d 890, 905

(Tex. App.—Austin 2014, no pet.). An agency’s decision “is supported by substantial evidence

if the evidence in its entirety is sufficient to allow reasonable minds to have reached the

conclusion that the agency must have reached to justify the disputed action.” Crystal Clear

Water Supply, 449 S.W.3d at 135 (citing Texas State Bd. of Dental Exam’rs v. Sizemore,

759 S.W.2d 114, 116 (Tex. 1988)). “The evidence in the record may preponderate against the

agency’s decision but still provide a reasonable basis for the agency’s decision and thereby meet

the substantial evidence standard.” Id. (citing Texas Health Facilities Comm’n v. Charter Med.-

Dal., Inc., 665 S.W.2d 446, 452 (Tex. 1984)). “The question of whether an agency’s decision is

supported by substantial evidence is a question of law, and we owe no deference to the district

court’s decision.” Id. (citing Brinkmeyer, 662 S.W.2d at 956).

Motion for Judicial Notice

Before addressing HMW’s appellate issues, we turn to its pending motion to take

judicial notice of the following: (i) “HMW Water System Data and Facts Regarding Public

Water Systems (‘PWS’) No. 1012794, 1700317 and 1012276”; (ii) the 1998 order by the Texas

6

Natural Resource Conversation Commission (TNRCC) 4 that converted a water supply

corporation to HMW and contingently issued CCN number 10342; (iii) the original CCN number

10342 that was issued in 1998 5; (iv) “Pages 1 and 17 of [HMW’s] Correction Warranty Deed

dated March 2, 1999”; (v) Former section 13.254(a-5); and (vi) Orders No. 9 and No. 10 in the

Commission’s Docket 50244. HMW has filed copies of these documents with this Court.

The 1998 TNRCC order, former section 13.254(a-5), and Orders No. 9 and No. 10 in the

Commission’s docket 50244 also were admitted as exhibits in the temporary injunction hearing

before the trial court, but none of the documents are in the administrative record. 6 During the

merits hearing, the trial court advised the parties that it would take judicial notice of the exhibits

from the temporary injunction hearing but that they were not admitted for purposes of its

substantial evidence review of the Commission’s order.

In an appeal from an agency order under substantial evidence review, the court

“is confined to the agency record, except that the court may receive evidence of procedural

irregularities alleged to have occurred before the agency that are not reflected in the record.”

Tex. Gov’t Code § 2001.175(e). Further, although appellate courts may take judicial notice in

certain circumstances, they “are reluctant to take judicial notice of matters that go to the merits

4 The Texas Natural Resource Conservation Commission (TNRCC), now known as the

Texas Commission on Environmental Quality, formerly regulated water utilities in Texas. See

Act of May 14, 2013, 83d Leg., R.S., ch. 170, § 2.05, 2013 Tex. Gen. Laws 725, 731 (codified at

Tex. Water Code § 11.002); Act of May 14, 2013, 83d Leg., R.S., ch. 171 § 5, 2013 Tex. Gen.

Laws 772, 773 (codified at Tex. Water Code § 11.002).

5 Although the original CCN number 10342 that was issued in 1998 is not in the

administrative record, it was uncontested before the Commission that the Property was located

within the boundaries of the certificated area under CCN number 10342.

6 HMW attached one of the documents to its motion for judicial review and included the

others in an appendix to its brief.

7

of a dispute.” Seiler v. Seiler, No. 03-19-00020-CV, 2021 Tex. App. LEXIS 122, at *11, n.4

(Tex. App.—Austin Jan. 8, 2021, pet. denied) (mem. op.) (citing SEI Bus. Sys., Inc. v. Bank One

Tex., N.A., 803 S.W.2d 838, 841 (Tex. App.—Dallas 1991, no writ)); see also Tex. R. Evid. 201

(addressing court’s authority to judicially notice adjudicative facts); Cabellero v. Rushmore Loan

Mgmt. Servs., LLC, No. 05-19-00298-CV, 2020 Tex. App. LEXIS 2901, at *16–17 (Tex. App.—

Dallas Apr. 7, 2020, no pet.) (mem. op.) (declining to take judicial notice of evidence that was

not presented to trial court because court of appeals is not “a trier of fact” (quoting SEI Bus. Sys.,

803 S.W.2d at 841)). “As a general rule, appellate courts take judicial notice of facts outside the

record only to determine its jurisdiction over an appeal or to resolve matters ancillary to matters

which are mandated by law.” SEI Bus. Sys., 803 S.W.2d at 841; see FinServ Cas. Corp.

v. Transamerica Life Ins., 523 S.W.3d 129, 147 (Tex. App.—Houston [14th Dist.] 2016, pet.

denied) (discussing when it is appropriate for appellate court to take judicial notice of facts that

are not in evidence).

Turning to HMW’s documents, the record reflects that the Commission and

the trial court considered former section 13.254(a-5) of the Texas Water Code not as evidence,

but as legal authority in their analysis. See Smith v. Montemayor, No. 03-02-00466-CV,

2003 Tex. App. LEXIS 5099, at *30 (Tex. App.—Austin June 19, 2003, no pet.) (mem. op.) (“A

reviewing court may consider any legal authority pertinent to the case.”). Similarly, we do not

need to take judicial notice of former section 13.254(a-5) of the Texas Water Code to consider it

as legal authority. See id. at *29–30 (“Legal authority need not be made a part of the

administrative record to be considered by the reviewing court.”).

As to the remaining documents that HMW has requested that we judicially notice,

we decline to do so. HMW could have sought to have the documents admitted in the underlying

8

administrative proceeding but did not do so. See Tex. Gov’t Code § 2001.175(c) (providing that

party may apply to court to present additional evidence and, if court is satisfied that evidence is

material and there were good reasons for failure to present evidence in agency proceeding, court

may order that additional evidence be taken before agency and agency may then change findings

and decision by reason of additional evidence). Additionally, HMW does not contend that the

documents are evidence of procedural irregularities before the Commission, see id.

§ 2001.175(e), and, based on our review of the documents, they do not impact this

Court’s jurisdiction over this appeal but go to the merits of the parties’ dispute. See Seiler,

2021 Tex. App. LEXIS 122, at *11, n.4; SEI Bus. Sys., 803 S.W.2d at 841. Thus, we deny

HMW’s motion to take judicial notice and turn to its issues.

Jurisdictional Challenge

In its first two issues, HMW argues that the Commission lacked jurisdiction or

authority to grant the petition because HMW “holds property interests that are ‘damaged,’

meaning in this case that their value is diminished” by the Commission’s order and that the

Commission’s action is barred by Article I, Section 13 of the Texas Constitution. See Tex.

Const. art. 1, § 13 (providing that “courts shall be open, and every person for an injury done him,

in his lands, goods, person or reputation, shall have remedy by due course of law”). HMW

argues that it is entitled to due process and that the Commission’s reduction of its certification

area is “in effect acting as a condemnation of HMW’s existing property, without due process or

compensation.” 7

7 As support for its arguments that the Commission did not have jurisdiction or authority

to release a portion of HMW’s certificated area, HMW relies on language in the 1998 TNRCC

order. HMW argues that the “plain meaning, mandatory language” in the order prohibits any

9

This Court, however, has held that “a CCN, which confers the exclusive right to

serve a designated area, is not a vested property right entitled to due-process protection.” See

Crystal Clear Water Supply, 449 S.W.3d at 145 (citing Creedmore-Maha Water Supply Corp. v.

Texas Comm’n on Envtl. Quality, 307 S.W.3d 505, 525–26 (Tex. App.—Austin 2010, no pet.)) 8;

see also 16 Tex. Admin. Code § 24.251 (Public Util. Comm’n of Tex., Exclusiveness of

Certificates) (“Any certificate granted under this subchapter shall not be construed to vest

exclusive service or property rights in and to the area certificated.”); Johnson Cnty. Specialty

Util. Dist. v. Public Util. Comm’n of Tex., No. 03-17-00160-CV, 2018 Tex. App. LEXIS 3328, at

portion of its certificated area from being decertified. Based on its characterization of its CCN as

a vested right, HMW also contends that it was entitled to rely on the rights afforded to it at the

time of its creation, together with its rights as a Texas water district, and that the Commission

improperly applied a “retroactive law” because former section 13.254(a-5) of the Texas Water

Code “was enacted long after” the 1998 TNRCC order granting its CCN. See Tex. Const. art. I,

§ 16 (“No . . . retroactive law . . . shall be made.”). We, however, have declined to take judicial

notice of the order, which is not in the administrative record, and do not consider it in our

analysis. See Tex. Gov’t Code § 2001.175(e). Further, even if we were to consider the order, it

would not impact our determination that the Commission had jurisdiction and was authorized to

release the Property from the certificated area of HMW’s CCN. See former Tex. Water Code

§ 13.254(a-5); Southwestern Bell Tel. Co. v. Public Util. Comm’n of Tex., 735 S.W.2d 663, 668

(Tex. App.—Austin 1987, no writ) (noting that rights utility has under CCN “arise and are held

under and subject to” statutory and regulatory provisions).

8 HMW argues that this Court’s opinions in Texas General Land Office v. Crystal Clear

Water Supply Corp., 449 S.W.3d 130, 135 (Tex. App.—Austin 2014, pet. denied), and

Creedmore-Maha Water Supply Corp. v. Texas Commission on Environmental Quality,

307 S.W.3d 505, 525–26 (Tex. App.—Austin 2010, no pet.), are factually and legally

distinguishable because the applicants in those cases did not possess a CCN “with the rights

attendant to those provided by the TNRCC,” which “cannot be divested,” and unlike the

applicants in those cases, Previllage did not request water service from HMW. But former

section 13.245(a-5) expressly authorizes an expedited release of property from a certificated area

when a landowner satisfies its requirements, and there is no requirement in former section

13.254(a-5) that the applicant not be a CCN holder or request water service before filing a

petition for expediated release. In any case, Previllage is not a CCN holder.

HMW also relies on Green Valley Special Utility District v. City of Schertz, 969 F.3d 460

(5th Cir. 2020), but that case concerns section 1926(b) of article 7 of the United States Code and

is not helpful to our analysis, see id. at 465.

10

*31 (Tex. App.—Austin May 11, 2018, pet. denied) (mem. op.) (relying on holding in Crystal

Clear Water Supply that “CCN is not a vested right entitled to due process protections”); cf. Tex.

Water Code § 11.026 (addressing perfection of right to appropriated water); Texas Water Rights

Comm’n v. Wright, 464 S.W.2d 642, 647 (Tex. 1971) (stating opinion that “matured

appropriation right to water is a vested right”). Further, the Legislature expressly authorized the

Commission to grant petitions for expedited release. See former Tex. Water Code § 13.254(a-5);

see also Tex. Water Code §§ 13.001(c) (stating that purpose of chapter is to establish

comprehensive regulatory scheme that is adequate), .242 (authorizing Commission to

issue certificates). 9

We also observe that HMW was provided notice of and participated in the

administrative proceeding. See Scally v. Texas State Bd. of Med. Exam’rs, 351 S.W.3d 434, 447

(Tex. App.—Austin 2011, pet. denied) (“At a minimum, due process requires notice and an

opportunity to be heard at a meaningful time and in a meaningful manner.” (citing Mathews

v. Eldridge, 424 U.S. 319, 333 (1976); University of Tex. Med. Sch. at Hous. v. Than,

901 S.W.2d 926, 930 (Tex. 1995))). And the statutory scheme provides a means for a CCN

holder in HMW’s situation to be compensated when property is released from its certificated

area. See former Tex. Water Code § 13.254(a-6). In its order, the Commission found that

“HMW’s existing water facilities can still be used and useful to provide service in the remainder

of its CCN service area” and that “[n]o property of HMW is rendered useless or valueless by the

decertification” and concluded that compensation was not required because HMW failed to

9 To the extent that HMW seeks relief because Previllage’s filing was prior to the

modification of former section 13.254 taking effect or argues that the Commission did not have

jurisdiction because former section 13.254 was modified and moved to a different section of the

Texas Water Code, HMW concedes that former section 13.254 applies to Previllage’s petition

because the petition was filed before September 1, 2019.

11

prove that “any of its property will be rendered useless or valueless by the decertification.” See

id. The Commission order also “has no effect on [HMW’s] title to any of its property or

facilities.” Johnson Cnty. Specialty Util. Dist., 2018 Tex. App. LEXIS 3328, *32.

For these reasons, we conclude that the Commission had jurisdiction and

authority to grant Previllage’s petition under former section 13.254(a-5) and overrule HMW’s

first and second issues.

Substantial Evidence Review

In its third issue, HMW argues that the Commission’s order interfered with and

prejudiced HMW’s substantial rights as provided by section 2001.174 of the Texas Government

Code. See Tex. Gov’t Code § 2001.174. HMW argues that the Commission “acted on a matter

not committed to its discretion, violated HMW’s substantial rights in numerous ways, employed

unlawful procedures, committed legal errors, and abused its discretion” “to deprive HMW of its

substantial rights.” HMW states its substantial rights as: (i) the rights provided in the 1998

TNRCC order, which “cannot be divested”; (ii) the right to rely on those rights; (iii) the right to

no interference from another CCN holder; and (iv) the “ability to expand its services as a Texas

water district.” See Tex. Water Code § 49.215 (addressing district’s authority to service areas

outside district without holding CCN). As support for this issue, HMW relies on Ozan’s

“conflicting affidavits.” HMW argues that because the affidavits directly contradict, “they

cannot purport to be ‘substantial evidence’ and cannot support this application.” Relatedly, in its

sixth issue, HMW argues that the petition was not verified as required by former section

13.254(a-5) because of the “conflicting affidavits.”

12

Although we do not consider the 1998 TNRCC order in our analysis because it is

not in the administrative record, our analysis would not be impacted even if we were to consider

it. The statutory scheme necessarily contemplates releasing a tract of land from a certificated

area of an existing CCN when the tract of land is not receiving water service. See former Tex.

Water Code § 13.256(a-5). Here the evidence before the Commission included: (i) Ozan’s

revised affidavit in which he averred that the Property was more than 25 acres, located in Harris

County, and “not receiving water service” from HMW or any other water service provider 10;

(ii) a copy of the warranty deed with vendor’s lien, which showed that Previllage owned the

Property; and (iii) maps showing the Property’s location. Although HMW participated in the

administrative proceeding, it did not present contrary evidence and does not dispute that the

Property is in Harris County.

Among its arguments, HMW characterizes the Commission’s conduct in allowing

Ozan to file a corrected affidavit as improperly “taking sides,” but HMW has not cited, and we

have not found, authority that would support its arguments that: (i) Ozan’s original affidavit

could not be revised to correct an inadvertent mistake, (ii) it was improper for the ALJ to allow

Previllage to file a revised affidavit that corrected the county in which the Property was located,

10 HMW characterizes Ozan’s statement about water service as “a single conclusory

statement, possibly drafted by another interested party,” but Ozan also averred:

The Property is not receiving water service from [HMW] or any other water

service provider. Previllage, LLC has not requested water service from [HMW]

or paid any fees or charges to initiate or maintain water service, and there are no

billing records or other documents indicating an existing account for the Property.

I have reviewed surveys and deed records for the Property and there are no utility

easements or other indication that any water lines or other facilities of [HMW are]

located on the Property. I have visited the Property, and I have not observed, and

am not aware of any work performed by [HMW] to extend service to

the Property.

13

or (iii) the Commission could not rely on the revised affidavit. The Commission’s rules

expressly allow a party to correct and amend pleadings and documents. See 16 Tex. Admin.

Code §§ 22.75 (Pub. Util. Comm’n of Tex., Examination and Correction of Pleadings and

Documents), .76 (Pub. Util. Comm’n of Tex., Amended Pleadings). Thus, we conclude that

HMW has not shown that the Commission violated HMW’s substantial rights by relying on the

revised affidavit when it granted Previllage’s petition to release the Property from the certificated

area. See Tex. Gov’t Code § 2001.174; former Tex. Water Code § 13.254(a-5). We overrule

HMW’s third and sixth issues.

Section 13.252

In its fourth issue, HMW contends that the Commission was required to consider

section 13.252 of the Texas Water Code, which provides:

If a retail public utility in constructing or extending a line, plant, or system

interferes or attempts to interfere with the operation of a line, plant, or system of

any other retail public utility, or furnishes, makes available, renders, or extends

retail water or sewer utility service to any portion of the service area of another

retail public utility that has been granted or is not required to possess a certificate

of convenience and necessity, the utility commission may issue an order

prohibiting the construction, extension, or provision of service or prescribing

terms and conditions for locating the line, plant, or system affected or for the

provision of the service.

Tex. Water Code § 13.252. HMW characterizes its right to be free from interference by

Quadvest, the water utility company that filed the petition for Previllage, as a substantial right

under section 2001.174 of the Texas Government Code and Quadvest as the “real applicant party

in interest” because it “drove the application to decertify” and “had the most to gain from its

potential success.” HMW argues that as the holder of a CCN, “Quadvest seeks to unlawfully

14

divest HMW of a portion of its service area” and to “supplant HMW as the water provider for the

disputed area, in violation of state policy.”

HMW, however, has not cited, and we have not found, authority that supports

HMW’s contention that it had a substantial right to be free from Quadvest’s conduct in the

administrative proceeding—its assisting and filing a petition on behalf of a landowner—or that

such conduct was unlawful or improper. The Commission reasonably could have concluded that

section 13.252 did not apply because there was no evidence that Quadvest had interfered with

HMW’s CCN in an unlawful way. Further, even if there was evidence of a violation of section

13.252, it was within the Commission’s discretion to take responsive action. See id. (stating that

commission “may” issue order); Tex. Gov’t Code § 311.016(1) (“‘May’ creates discretionary

authority or grants permission or a power.”). We overrule HMW’s fourth issue.

Discovery Requests

In its fifth issue, HMW contends that the Commission and the trial court should

have granted HMW’s discovery requests “for the purpose of obtaining additional facts about the

relationship between Previllage and Quadvest, incident to [HMW’s] allegation that Quadvest is

the real party in interest.” See 16 Tex. Admin. Code § 22.141 (Pub. Util. Comm’n of Tex.,

Forms and Scope of Discovery). HMW argues that the requests were timely, reasonable, not

burdensome, and designed to ascertain facts relevant to this proceeding and that the

Commission’s “failure to confront the implications of Quadvest’s involvement in this case was a

further abuse of discretion.” But because a petition for expedited release is not a contested case

hearing and there is not an opportunity for a hearing, the Commission reasonably denied HMW’s

motion to direct responses to discovery. See Tex. Water Code §§ 13.015 (authorizing informal

15

proceedings); former Tex. Water Code § 13.254(a-5), (a-6) (requiring Commission to grant

petition that satisfied statutory requirements not later than 60 days after landowner files petition);

Johnson Cnty. Specialty Util. Dist., 2018 Tex. App. LEXIS 3328, at *32 (observing that section

13.254 does not require hearing of expedited release proceeding and comparing expedited

release proceeding with proceeding under section 13.254(a) that authorizes “at any time after

notice and hearing” Commission to revoke or amend CCN).

HMW similarly argues that the trial court should have used its authority to permit

HMW to obtain the evidence it sought through discovery under subsections 2001.175(c) and (e)

of the Texas Government Code. Those subsections, however, concern presenting additional

evidence outside the administrative record, not requests for discovery. See Tex. Gov’t Code

§ 2001.175(c) (authorizing party to apply to court to present additional evidence), (e)

(authorizing court to “receive evidence of procedural irregularities alleged to have occurred

before the agency that are not reflected in the record”). We overrule HMW’s fifth issue.

Trial Court’s Final Judgment

In its seventh issue, HMW contends that the trial court erred by failing to reverse

the Commission’s order. As part of this issue, HMW also appears to challenge the trial court’s

denial of its request for injunctive relief in its briefing and to ask this Court to grant injunctive

relief. Given that we have concluded that substantial evidence supports the Commission’s order,

even if we assume that we have the authority to grant such injunctive relief, we deny HMW’s

request. Other than the appellate issues that we have already addressed, HMW does not raise

other separate arguments to support its seventh issue. For the reasons stated above, we conclude

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that the trial court did not err when it affirmed the Commission’s order and overrule HMW’s

seventh issue.

CONCLUSION

Having overruled HMW’s issues, we affirm the trial court’s final judgment.

__________________________________________

Rosa Lopez Theofanis, Justice

Before Justices Baker, Smith, and Theofanis

Affirmed

Filed: February 24, 2023

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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